December 1, 1981
20.4.14
The Public Service Alliance requested an interpretation of Section 2 (12) and 5 in the following areas:
Can a person, who may not be qualified himself, direct an employee to perform a specific task when the employee himself feels he is not qualified to perform the task safely?
Can that person, having knowledge of the employee's knowledge, training and experience declare the employee to be otherwise qualified to perform safely and properly a specified job regardless of the fact that the employee may not consider himself qualified?
Or is it intended that only a qualified person can declare another person otherwise qualified where that person has the knowledge, training and experience to perform the task in the opinion of the qualified person?
Also, if the person is not qualified, but performs the task under direct supervision, is that direct supervision during the performance of the task or can the direct supervision be from an office away from where the employee is performing the task?
The Administrative Committee considered and agreed with the report of the Occupational Health, Safety and Physical Working Conditions Committee in that:
In the Committee's opinion, where with respect to a specified job the employee says he is not a qualified person the onus is on the employer to prove otherwise. In this situation proof would have to be in the form of documentary and/or other evidence that would withstand any challenge from the employee or from any third party.
For a number of reasons a worker might know that he is not qualified to perform safely and properly a specified job. This might arise because of the currency of his qualification; for example he might not have done the job for a long time, perhaps a number of years. Changes in design or configuration of the particular machine or operation since he was trained are also factors that can affect this decision.
In line with these comments, the answers to the first three questions are all negative. The answer to the fourth question depends partly on what is meant by direct supervision and partly on the nature of the job itself. In any case, where that part of the overall job that calls for a qualified person is being performed, the qualified supervisor must be present.